Application for annual leave entitlements accrued and not paid on termination of employment by resignation - Evidence by way of affidavit and copy payslips unchallenged - No appearance by respondent - Application for interest on judgement - HELD: Applicant entitled to payment of annual leave accrued and payable on termination pursuant to s 90(2) of the Fair Work Act 2009 - Applicant entitled to interest pursuant to s 547.

Fair Work Act 2009 (Cth)

1. These are the reasons for decision delivered ex tempore at the hearing on 2 May 2025.
2. Luigi Pergoleto has claimed that he is owed $7,790.17 by his former employer, the respondent Hungry Baker Hospitality Pty Ltd ('Hungry Baker'), for accrued annual leave entitlements owing to him and unpaid at the conclusion of his employment by resignation on 20 December 2024. He was employed as a café manager from 30 May 2022 until the date of effect of his resignation on 20 December 2024. The claim was filed on 21 January 2025.
3. Hungry Baker has filed a response dated 19 February 2025 admitting that Mr Pergoleto's annual leave was not paid, but claiming it paid one week's wages in advance in March 2024 which it was entitled to recover and that, although Mr Pergoleto provided medical certificates for the last week of his notice period, the café had been unable to trade as staff were not arranged to cover his absence.
4. The claim was referred to conciliation but failed to settle, with Hungry Baker failing to engage in the process and failing to attend the scheduled conferences. It was then referred to me for hearing and determination on 26 March 2025.
5. At the initial directions hearing held by telephone on 10 April 2025, Hungry Baker again failed to answer the Court's calls for the hearing and did not otherwise communicate with either the applicant or the Court. In its absence, I listed the application for hearing on 2 May 2025 at 3.15pm and made orders for Mr Pergoleto to file his affidavit evidence by 17 April 2025 and Hungry Baker to file its affidavit evidence by 29 April 2025.
6. These orders and the hearing date were communicated to Hungry Baker by the Court, to the email address provided on the response form. There was no bounce back message to suggest that these notices were not received.
7. Mr Pergoleto filed his affidavit on 11 April 2025. There was nothing filed on behalf of Hungry Baker and again no communication from it to either the Court or Mr Pergoleto.
8. At the hearing today, there was again no appearance for Hungry Baker. The hearing proceeded in its absence.
9. Mr Pergoleto's affidavit annexed a copy of a payslip dated 24 December 2024 which showed an annual leave accrued balance of 219.9262 hours, which he stated in oral evidence had not yet been paid to him.
10. The affidavit also annexed several medical certificates certifying Mr Pergoleto unfit for work from 15 December to 20 December 2024 inclusive. Mr Pergoleto was paid sick leave for this absence on 24 December 2024, but was not paid his accrued annual leave.
11. The affidavit also annexed a number of letters of demand that he had sent to Hungry Baker trying to extract payment for his accrued annual leave. One of these included the calculation of the sum of $7,790.17 by reference to the hourly rate at which he was being paid.
12. In the absence of any appearance by Hungry Baker or any challenge in any other way to Mr Pergoleto's evidence, I am satisfied that he is entitled to payment for his accrued annual leave in the amount he has claimed. Hungry Baker did not pursue any claim for set off in relation to its alleged advance wages payment and there was no record of it as an amount in advance or owing on the payslips provided in evidence. In the absence of any evidence or argument from Hungry Baker about the alleged advance payment, I am unable to conclude that such an amount was owed to Hungry Baker by Mr Pergoleto. The separate grounds in the response that the café did not trade due to Mr Pergoleto's absence during his last week of notice is not made out. His absence on sick leave as certified by the medical certificates does not constitute grounds for withholding his accrued annual leave payment.
13. Annual leave is an entitlement under the National Employment Standards. Pursuant to s 90(2) of the Fair Work Act 2009 ('the Act'), if an employee has a period of untaken annual leave when the employment ends, "the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave".
14. Pursuant to s 547 of the Act, unless good cause is shown to the contrary, an order for payment of an amount owed under the Act must, on application, include an amount of interest in the order for payment, taking into account the period of time between when the entitlement arose and the date of the judgment order. Mr Pergoleto has applied for interest and accordingly I consider an amount of $238.75 in interest to be payable for the period 20 December 2024 to 2 May 2025.

The respondent is to pay to the applicant within 14 days the following amounts:

1. $7,790.17 for accrued annual leave; and
2. $238.75 in interest.